Eno v. Diefendorf

• Decision Date: 08 June 1886
• Citation: 102 N.Y. 720,7 N.E. 798
• Parties: ENO v. DIEFENDORF.
• Court: New York Court of Appeals Court of Appeals

102 N.Y. 720

7 N.E. 798

ENO

v.DIEFENDORF.

Court of Appeals of New York.

June 8, 1886.

Appeal from judgment of general term supreme court, Fourth department, in favor of plaintiff.

S. N. Doda, for appellant, Rufus Diefendorf.

F. A. Lyman, for respondent, Maria Eno.

PER CURIAM.

The complaint in this action alleged that the plaintiff's husband and the appellant were copartners; that plaintiff was sole legatee and devisee of her husband, who died in 1866; that after the death of plaintiff's husband the appellant received moneys, notes, and accounts belonging to the plaintiff and for her use; that she loaned him moneys, and he refused to render an account, and settle for the same, and was indebted to her in the sum of $5,000 by reason thereof. The complaint also alleged an assignment by the appellant to one J. H. I. Diefendorf, (but as the complaint was dismissed as to this party the allegation in that respect is not material.) The complaint then demanded an accounting between the plaintiff and the defendants, and that the defendants pay her the balance that may be found due on such accounting.

Various answers were interposed to the complaint, and upon the trial before a referee he found in favor of the plaintiff, and against the appellant, for a balance of $3,189.36, and, upon an appeal from the judgment entered thereupon to the general term, the same was affirmed.

The main point presented upon this appeal to which our attention is directed, is that the referee erred in not giving legal effect to the settlements proven by the uncontradicted testimony of the parties, and in permitting such settlements to be opened without charge of fraud or mistake in the complaint, or proof thereof on the trial. This involved a question of fact before the referee, in regard to which the evidence was conflicting, and it is not apparent that the referee passed upon the same contrary to the weight of the evidence, or that his finding in this respect was without sufficient testimony to sustain it. The alleged settlements mainly related to the giving of certain promissory notes, but in each instance the evidence fully explained the facts and circumstances under which these notes were given, and the most that can be claimed is that a question of fact was presented as to whether any settlement had taken place. There was no proof that was absolutely conclusive that such was the fact. It does not appear that the appellant rendered an account of the items of moneys in his hands or demands due the plaintiff at the time of the alleged settlements. The proof shows that he admitted, at...